Chia Kim Heng Frederick v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 14 January 1992
• Neutral Citation: [1992] SGCA 6
• Docket Number: Criminal Appeal No 19 of 1990
• Date: 14 January 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: B Jeyapalan (Samuel Jacob & Co)
• Citation: [1992] SGCA 6
• Defendant Counsel: Lau Wing Yum (Deputy Public Prosecutor)
• Court: Court of Appeal (Singapore)
• Subject Matter: Power of appellate court to interfere in sentence,Criminal Procedure and Sentencing,Benchmark sentences,Rape,Whether sentence imposed manifestly excessive,Sentencing,Mitigating factors,Sentencing practice

Cur Adv Vult

On 24 September 1990 the appellant pleaded guilty to a charge of rape under s 376(1) of the Penal Code (Cap 224) (`the Code`). At the time of the offence the appellant was 32 years old and had been employed as a technician by the same company for more than ten years. The victim was a 16-year-old secondary school student. They had been acquainted with each other because the appellant then had a girlfriend whose nephew was the victim`s boyfriend. They were on friendly terms.

On the evening of 31 December 1986 the appellant drove his girlfriend and the victim from his girlfriend`s house to a party at Changi Sailing Club. There he consumed at least five glasses of beer and a misunderstanding began between him and his girlfriend, which was to last through the night. On this occasion the victim was dressed in pantaloons and a gartered blouse with a bare midriff and to the appellant was looking provocative; further she conducted herself in a very adult manner and had been innocently physical with the appellant in the course of the evening`s hilarity. Thus the appellant saw her not as a girl but as an attractive and desirable woman whom he might succeed in persuading into intimacy with him.

At about 1am the victim left the club with the appellant and his girlfriend because the appellant was to drive them home in his car. The appellant`s girlfriend took the front passenger seat in the car and the victim the rear seat. The appellant first took his girlfriend home to Kallang Bahru. Thereafter the victim continued to occupy the rear seat of the car. Instead of driving her home the appellant drove to Surin Avenue where he parked at about 2am. He entered the rear passenger compartment of the car, locked all the doors and began to embrace and kiss the victim, who struggled and screamed for help, to no avail. When she tried to unlock a car door to escape the appellant stopped her and became ill-tempered. He completely undressed the victim forcibly, and then himself.

Thereafter, by threatening her with the loss of her virginity, he succeeded in making her masturbate him and then fellate him. When he subsequently began to perform cunnilingus on her, the victim again tried unsuccessfully to escape. Provoked by this attempt, the appellant began actual intercourse with her and, overcoming her struggles, eventually achieved complete penetration and ejaculation, after which he withdrew himself from her. When they had both put on their clothes, the appellant drove to a 7-Eleven store where he bought the victim a drink and afterwards drove her home. During this journey he apologized to the victim for what he had done and said he was `a bit mad` at times. The victim reached home at about 3.30am. Medical examination showed fresh hymenal tears at 4 o`clock and 7 o`clock positions. The next day she told her best friends and her boyfriend about the incident. When confronted the following day by his girlfriend and her brothers, the appellant immediately admitted what he had done. The victim reported the matter to the police on 3 January 1987 and the appellant was arrested the day after. He co-operated with the police and made a voluntary statement which he never thereafter sought to deny.

In mitigation the court was additionally told that the appellant had decided to plead guilty to spare the complainant the trauma of a trial and he was most remorseful. There was no pre-meditation, no violent assault, no weapon, and, it was contended, no real threat of hurt or death. The alcohol he had consumed, though not sufficient to make him lose control of himself, was enough to make him less inhibited and more licentious than normal. He had believed the victim`s conduct to be the demure behaviour or play-acting of a willing and consenting person. Despite this incident, his girlfriend married him in May 1987 when he was on bail pending trial and they now have an infant daughter. He was a first time offender and, though he lost his original steady job when in remand, he found other gainful employment when he was out on bail. He is the sole breadwinner of the family and, until his mother died recently, supported both his aged parents. His father is terminally ill with cancer. The victim has since found gainful employment and, it seems, has suffered no long-term ill effects from the incident.

The appellant was sentenced to eight years` imprisonment and eight strokes of the cane and appeals against this sentence.

The appellant was convicted under s 376(1) of the Code which reads as follows:

Subject to subsection (2), whoever commits rape shall be punished with imprisonment for a term which may extend to 20 years, and shall also be liable to fine or to caning.

Subsection (2), which is not applicable to the present case, deals with the more serious rape offences and provides as follows:

Whoever, in order to commit or to facilitate the commission of an offence of rape against any woman -

(a) voluntarily causes hurt to her or to any other person; or

(b) puts her in fear of death or hurt to herself or any other person,

and whoever commits rape by having sexual intercourse with a woman under 14 years of age without her consent, shall be punished with imprisonment for a term of not less than 8 years and not more than 20 years and shall also be punished with caning with not less than 12 strokes.

It can be seen from the above that rape is a serious offence for which a severe punishment is prescribed by law. In this connection it would not be out of place for us to follow the example of Lord Lane CJ in R v Billam [1986] 1 All ER 985[1986] 1 WLR 349[1986] 8 Cr App R (S) 48 in citing a passage from the Criminal Law Revision Committee`s 15th report on sexual offences in 1984 which he said reflected accurately the views of the English Court of Appeal, and which also accurately reflect the views of the Singapore Court of Criminal Appeal. The passage was as follows:

Rape is generally regarded as the most grave of all the sexual offences. In a paper put before us for our consideration by the Policy and Advisory Committee on Sexual Offences the reasons for this are set out as follows -

`Rape involves a severe degree of emotional and psychological trauma. It may be described as a

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